A heavyweight kickboxer is set to be booted out of Australia within weeks, after the ACT's top court declined on Friday to quash his sentence for an attack that left the victim on life support.
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Ilaisa-Taka-I-Monu Ngata, 29, had sought to have his 19-month jail sentence set aside and replaced by a term of less than 12 months, in order to avoid mandatory deportation to his native New Zealand.
His failed legal battle comes after he drank a litre of vodka before going to the Monkey Bar nightclub in Civic in the early hours of May 19 last year.
Ngata, a former Queanbeyan Blues rugby league player who is also known as Elijah Ngata, had an argument with a man he claimed had racially abused him at the top of a staircase.
He then punched the man in the face, causing him to collapse and slide halfway down the stairs.
The man then left the nightclub, followed by a group including Ngata, security staff and "unknown males". One "unknown male" grabbed the man from behind, prompting a Good Samaritan to come to the man's aid.
Ngata ran at the Good Samaritan, punching and knocking him unconscious despite the Good Samaritan urging: "Please don't do this".
The incidents were captured by CCTV cameras, and Ngata was arrested soon afterwards.
The Good Samaritan spent the next two days in intensive care on life support. He has since provided a victim impact statement saying he now fears social activities he once enjoyed, and that he needs counselling but has been too embarrassed to seek it.
Ngata pleaded guilty to charges of recklessly inflicting grievous bodily harm and common assault.
In January this year, ACT Supreme Court Justice David Mossop sentenced him to 19 months in jail, to be suspended after three months behind bars. The jail sentence related solely to the attack on the Good Samaritan, with the earlier assault dealt with by way of a good behaviour order.
Ngata is due to be released from jail on April 29 and faces almost certain deportation to New Zealand because non-citizens who receive a jail sentence of 12 months or more are kicked out of Australia upon release from custody, unless it is considered an extraordinary case that warrants ministerial intervention.
In a desperate bid to stay in Australia, Ngata appealed his sentence on four grounds in the ACT Court of Appeal last month.
His barrister, John Purnell SC, argued the sentence was wrong because Justice Mossop had failed to give an appropriate discount for Ngata's guilty pleas, and because the judge did not properly take into account expert evidence suggesting that Ngata's major depressive disorder contributed to his offending.
Mr Purnell also contended that the sentence was a "manifestly excessive" penalty, with Justice Mossop failing to properly consider the impact of the sentence on Ngata's family.
Ngata's partner, Jade Ngata, gave evidence that she would remain in Australia if Ngata was deported because she would have difficulty finding work in New Zealand.
She said she relied on Ngata to help care for and financially support their two children, and his deportation would leave "a gaping hole in the family", forcing her to move into a one-bedroom unit with the children and her mother.
She said Ngata also played a role in the lives of two children, who also live in Australia, from a previous relationship.
All four grounds of Ngata's appeal failed when the ACT Court of Appeal delivered its decision on Friday afternoon.
Justice John Burns, Justice Chrissa Loukas-Karlsson and Acting Justice Lorraine Walker noted that a 19-month jail sentence for recklessly inflicting grievous bodily harm was only slightly more than 12 per cent of the maximum penalty available.
"It is impossible to suggest that it was a manifestly excessive sentence, even taking into account the appellant's subjective features," the appeal court judges said.
"If anything, the sentence imposed, requiring only three months of full-time imprisonment, was merciful."
